Process of Land Succession in Kenya
Succession is where an interest in land is transferred from the person who has died, to the successors – people entitled to take over the deceased person’s property. Shares in Maori land are inclusive.
Maori land shares are those that can be transferred by a vesting order, to a trustee from a person who owns, or is entitled to own Maori land shares. Maori land shares can be transferred, by a vesting order, from a trustee, or representative for someone else to the person who is entitled to be the beneficial owner.
When someone dies, the fate of their wealth must be decided. Inheritance is the universal practice of passing on property as well as titles, rights, obligations, and even debts.
Various countries have laws that govern such practices. In Kenya, The Law of Succession Act dictates the rules that ought to happen to a person’s property after he passes on.
Succession involves settling the estate of the deceased person and distributing the property to the heirs. During succession, the heirs entitled to inherit the estate of the deceased and the extents of benefits they are to receive are determined.
The Law of Succession Act
The Law of Succession Act was passed by parliament in the year 1972 and came about after the compilation of a report by a commission appointed by the First President of the republic, Mzee Jomo Kenyatta. The report looked into problems concerning the regime in the country. The law defines who can inherit the property of the deceased. The Law also expounds on how to apply for succession, which is the process that transfers the property from the deceased to the beneficiaries, both in cases where there is a valid will and in the absence of one.
The Law of succession rules varies for testate and intestate successions.
Under this succession Act, the disposal of the property of the deceased person is carried out according to the will, or testament. The will is a record of the disposal of deceased person’s wishes and intentions pertaining to the devolution of his property upon his death. The person owning the property makes arrangements to ensure that upon his death, the property passes to a person, or persons of his choice through a valid will.
It is important to note that the will has no legal effect until the maker dies. While he is alive, it neither limits his rights of ownership nor confers any benefits to anyone. Beneficiaries under a will do not acquire an interest in the property before the testator’s death.
Under this succession Act, the law applies to the situation where an individual dies before making a will, or otherwise the will is invalid.
It serves for the scenario whereby the deceased person does not leave behind a will spelling out how the estate should be distributed to the people entitled to it. The nature of the devolution of the property upon intestacy depends on whether the deceased was polygamous, or monogamous. The Law of Succession Act makes provision for both monogamous and polygamous situations.
Provisions relating to intestacy are contained in Part V of the Act from Section 32 to Section 42. The rules of this act only benefit the people who have a direct blood link with the intestate. Under Section 35 and 37 of this act, immediate family members, including the spouse and children, are given priority to inherit the estate.
The surviving spouse is entitled to the personal and household effects of the deceased. He/she is required to hold the estate in trust for the children and to divide it to the children in equal shares in the future. If there is no surviving spouse, the net intestate estate devolves upon the child, or children of the deceased.
Under Section 36, where the intestate has left one surviving spouse but no child, or children, the surviving spouse is entitled out of the net intestate estate to:
The personal and household effects of the deceased absolutely, the first Ksh. 10,000 out of the residue of the net intestate estate 20% of the residue of the net intestate whichever is greater, and a life interest in the whole of the remainder.
In section 40, the case of polygamous intestate is addressed. In such a case, his/her personal and household effects and the residue of the net intestate estate should in the first place be divided among the houses according to the number of children in each house.
If there are no immediate family members, distant relatives are allowed to inherit it. There are no benefits conferred on categories such as the parents-in-law and unmarried partners except in the case where the deceased left a will. In the case where there are no blood relatives, the estate, or property devolves to the state.